Tuesday, 21 June 2016

What impact does EU membership
have on policing and criminal law in the UK – and what would be the impact of
Brexit? I’ll give the shorter summary version of the answer to those questions
first, followed by a longer more detailed version.

Summary

The UK had a veto over EU laws in
this area adopted before the Treaty of Lisbon came into force (1 December
2009). Since then, it has had two opt-outs instead: a) it can opt in (or out)
of any new EU law in this field adopted after that Treaty; and b) it
could go back and opt out of any old EU laws which were adopted
before that Treaty. The UK used the latter power to opt out of the majority of
pre-Lisbon laws.

There are five main areas of EU
criminal law and policing. One area is the definition of crime, where the UK has
opted into a small number of EU laws on issues such as child abuse. A second
area is criminal procedure, where the UK has opted into some EU laws on
suspects’ rights and crime victims’ rights. These are basically domestic areas
of law, and there’s no reason to think the UK would change its rules after
Brexit.

However, the other three areas
concern international cooperation, where it is impossible for any individual
country to act alone. Those areas are: a) recognition of criminal decisions (on
arrest warrants or gathering evidence, for instance); b) the exchange of police
information; and c) EU agencies like Europol, the EU police intelligence agency.

On criminal law mutual
recognition, there are other international rules on some of these issues – such
as extradition – but they do not go as far as the EU rules. In some cases,
there are no alternative international rules on the same issue. The UK could
seek to negotiate a treaty with the EU on these issues, but the past precedents
show that non-EU countries are able to negotiate only limited participation in
these EU laws.

On EU agencies, non-EU countries
can participate as associates, but this means a more limited involvement in each
agency than they would have as EU Member States.

The UK’s involvement in police
information exchange with the EU would also be subject to renegotiation if the
UK left the EU. Again, past precedents show that non-EU countries are able to negotiate
only limited participation in these EU laws. And if the UK did not continue to
sign up to EU data protection laws fully, there would be difficult legal disputes
that could limit the transfer of policing data to the UK’s law enforcement
authorities from the EU.

It cannot be seriously argued
that the UK has ‘lost control’ over its law enforcement and intelligence agency
operations to the EU, given the UK’s opt-out, the focus of EU law on
cross-border issues, and the lack of any EU law on intelligence issues.

Overall, a Brexit is very likely
to lead to a significant reduction on cooperation in criminal and policing
matters between the UK and the EU.

The details

First and foremost, while the EU
has adopted a number of laws in this area, the UK only participates in some of
those laws, and has an opt-out over future laws in this area too. This blog
post will in turn: (a) describe the basics of EU law in this area, including
the UK opt-out; (b) summarise the main EU laws in which the UK does (or does
not) participate in; and (c) indicate what could happen in the event of
‘Brexit’. For a full academic treatment of these issues, see the fourth edition
of my EU
Justice and Home Affairs Law book (volume 2).

(a) The basics of EU policing and criminal law

Before the entry into force of
the Treaty of Lisbon (on 1 December 2009) police and criminal law matters were
subject to a different legal framework from ordinary EU (or European Community)
law. The powers of the EU institutions (Commission, European Parliament, EU
Court) were more limited, and each Member State, including the UK, had a veto
over all laws.

The Treaty of Lisbon repealed
these special rules, bringing EU criminal and policing law into the general
framework of EU law. From this point on, the usual rules of EU law have applied
to this field, with a few exceptions. However, the key point for the UK is that
in place of a veto, it got not just one but two
opt outs from EU law in this field.

First, the UK can opt out of (or
into) any individual EU laws on criminal law or policing proposed after the entry into force of the Treaty
of Lisbon.

Secondly, the UK got the power to
opt out of EU criminal laws which it had already agreed to before the entry into force of the Treaty of Lisbon. It could invoke
this power as of 1 December 2014. The UK government used this to opt out of all
but 35 of the EU criminal laws adopted before the Treaty of Lisbon. (See the
discussion of that process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law
touches on five main issues:

(a)substantive
criminal law (ie the definition of crimes);

(b)mutual
recognition in criminal matters (ie applying another EU Member States’ criminal
law decision, where there is a cross-border issue like gathering evidence in
another EU country, or asking another country to hand over a fugitive to face a
trial or serve a sentence);

(c)harmonisation
of criminal procedure;

(d)exchange
of police information; and

(e)EU
agencies.

The effect of the two sets of
opt-outs is that the UK has been highly selective about the EU law in this area
which it wishes to apply. Taking the five areas of law in turn, first of all
the UK has opted out of almost all EU substantive
criminal law. It is covered by the EU Directives adopted since the Lisbon
Treaty defining offences relating to trafficking
in persons, sexual
abuse of children and attacks
on information systems (a form of cyber-crime), but not by EU laws defining
offences relating to terrorism, organised crime, fraud, drugs, market abuse by
bankers, racism, or currency counterfeiting.

Secondly, the UK is far more
engaged in mutual recognition in criminal matters, in particular the flagship
law on the European
Arrest Warrant (EAW), which is a fast-track extradition system. The UK has
also signed up to EU laws on:

(b)victim
protection orders (where the victim of domestic violence moves to another
EU country and wants a restraining order against her abuser to be transferred
to that country when she moves there);

(c)pre-trial
supervision (so a criminal suspect can be released on bail to await trial
on less serious offences back in Britain, rather than spend a long time in
pre-trial detention in a foreign prison);

(d)confiscation
of assets and freezing
orders (to ensure that the proceeds of crime held by alleged or convicted criminals
in another EU country can be frozen pending trial, and seized if the suspect is
convicted);

(e)the
effect of prior sentences or other judgments (so that previous criminal
offences committed in another EU country are counted when assessing whether
someone is a repeat offender); and

(f)the
transfer of prisoners
and criminal
sentences (simplifying the movement of foreign prisoners to jails in their
EU country of origin, and recognizing fines imposed by a criminal court too –
including any penalties imposed against companies for breach of criminal law).

Finally, as regards EU agencies,
the UK participates in Europol
(the EU police intelligence agency) and Eurojust (the agency
which coordinates work of prosecutors in cross-border cases) at present.
However, it has opted out of a new law concerning Europol, and a proposed new
EU law concerning Eurojust,
which set out (or would set out) revised rules for those agencies following the
entry into force of the Treaty of Lisbon, although it might decide to opt in to
those Regulations after they are adopted. The UK used to host the European
Police College (a training agency), but refused
to continue hosting it and opted out of a new
version of the relevant law.

There has been some concern particularly about the prospect of the UK participating in a law to create a
European Public Prosecutor. While the EU Commission proposed
a law to create a European Public Prosecutor in 2013, the UK has opted out of
that proposal. Indeed, the UK would have to hold another referendum before it
opted in to that law, according to the European Union Act 2011.

(c) What would the impact of ‘Brexit’ be?

It’s sometimes argued that EU
laws on policing and criminal law are irrelevant to the UK’s membership of the
EU, because the UK can simply do everything it wishes to do in this field in
its domestic law. That’s a valid argument for two of the five areas of law described
above: substantive criminal law and harmonisation of procedure. But it doesn’t
work for the three other areas – mutual recognition, exchange of information
and participation in EU agencies – which necessarily require some cooperation
with other states. Put simply, a British Act of Parliament cannot regulate how
France or Germany issue extradition requests.

What would happen if the UK left
the EU? In each case, as with other areas of EU law and policy, it would depend
on what the UK and EU negotiated afterward. But it is possible to give some
general indication of the consequences.

In the area of mutual
recognition, the UK can fall back on Council of Europe treaties, which address
some of the same issues (note that the Council of Europe is a separate body
from the EU, which includes non-EU European countries like Turkey and Russia;
some of its treaties can be signed also by non-European states like the USA).

However, the relevant treaties do
not go into as much detail as the EU laws, and are often less effective. As an indication of this, see the UK government
information
about the application of EU law in this area. Extradition from the UK has gone from
60 people a year (to all countries) before 2004 to 7000 since 2004 on the basis
of the European Arrest Warrant. Over 95% of those sent to other Member States
are not British.

Moreover, in some cases the UK
and/or some other Member States have not ratified the relevant treaties. For
instance, fewer than half of all Member States have ratified the Council of
Europe Convention on validity of criminal judgments; the UK has not ratified it
either. But the EU law on mutual recognition of criminal penalties sets out
rules on one of the key issues in that Council of Europe treaty: the recognition
of criminal financial penalties imposed by another Member State’s court. Some
issues have not been the subject of Council of Europe treaties at all, such as
the pre-trial supervision rules set out in EU law. In these cases, the EU law
is the only means of ensuring the cooperation in question.

Another alternative is to
negotiate treaties with the EU on these issues. The EU has been willing in
practice to negotiate access to some aspects of its criminal law measures: a
form of the EAW for Norway
and Iceland, an extradition treaty with the USA,
and mutual assistance (exchange of evidence) with Norway
and Iceland, the USA
and Japan.
But the extradition treaty with Norway and Iceland took years to negotiate, is still
not in force at time of writing, and does not oblige States to extradite their
own citizens – meaning that the UK would not be able to ask Germany to
extradite Germans, for example. That restriction cannot easily be negotiated
away in the event of Brexit, because some EU countries have constitutional
problems which prevent them extraditing their own citizens outside the EU. (On
these sorts of issues, see E Guild, ed, Constitutional challenges to the
European Arrest Warrant).

Overall,
there are no such treaties agreed with
any non-EU countries on the large majority of EU criminal law mutual
recognition measures. Of the treaties which are agreed, not a single one goes as far as the relevant EU legislation
in force.

A particular concern of critics
of the EU rules on extradition is the ‘sufficient evidence’ (‘prima facie’)
test which was traditionally applied by the UK before accepting an extradition
request. While it is sometimes argued that the EAW abolished the ‘prima facie’
test as regards EU countries, this is not correct. In fact, the UK waived the
right to apply this test to European countries when it signed up to the Council
of Europe extradition treaty back in 1990, over a decade before it signed up to
the EU’s EAW: see the Extradition Act
1989, section 9(4), which was implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507).
In other words, the test was not abolished because of EU law, but was already
abolished well before the EU had any involvement in extradition law.

Why did the UK abolish the prima facie test? As noted in the 2011 Baker
review of UK extradition law, the decision was made because of the
difficulties it posed for extradition in practice: a White Paper of 1986 stated
that it ‘did not offer a necessary safeguard for the person sought by the
requesting State but was a formidable impediment to entirely proper and
legitimate extradition requests’. Ultimately the Baker review recommended that
there was ‘no good reason to re-introduce the prima facie case requirement’
where it had been abolished, and that ‘No evidence was presented to us to
suggest that European arrest warrants are being issued in cases where there is
insufficient evidence’.

The prima facie test is sometimes described as an aspect of the ‘presumption
of innocence’, although in fact a fugitive who is extradited pursuant to this
test still either has to be convicted pursuant to a trial in the requesting
State, or has already been convicted but fled the country. In other words, the
presumption of innocence still applies
when the substantive criminal trial takes place (or took place).

As regards the EU agencies, the UK can enter into agreements
to cooperate with Europol and Eurojust, like other non-EU countries. However,
as the Director of Europol points
out, such agreements don’t allow the UK to have direct access to databases,
to lead investigation teams, or to take part in the management of those
agencies: both Europol and Eurojust have had British Directors.

Finally, as regards policing, the EU has given some non-EU
states access to the Schengen
Information System, and to the ‘Prum’
rules on access to each Member State’s national policing databases. But this
was linked to those countries fully joining the Schengen system. The UK would
obviously not do that after a Brexit.

The EU has also signed treaties
on the exchange of passenger name records with non-EU countries (the USA,
Canada
and Australia),
as well as a treaty
on the exchange of financial information (concerning alleged terrorists) with
the USA, so might be willing to sign similar treaties with the UK. It has also
recently agreed
an ‘umbrella’ treaty on general exchange of police information with the USA,
although this is not yet in force.

However, the EU has not extended
access to its system on exchange
of criminal records to any non-EU countries. While there is a Council of
Europe treaty on mutual assistance in criminal matters (which the UK and all
other Member States are party to) that provides for some exchange of
information of such records, it results in far less information exchange. The
exchange of criminal records is particularly important for the UK: the
government has reported
that the UK is one of the biggest users of the EU system, and that criminal records checks of foreign
nationals in the criminal justice system have increased 1,650% since
2010.

However, there is a particular
issue that has complicated the exchange of personal data between the EU and with
non-EU countries, particularly as regards policing data. Are their data
protection standards sufficient as compared to the standards maintained by the
EU? If not, then the European Parliament may be reluctant to approve the deal,
or it might be challenged in the EU Court. This isn’t a hypothetical
possibility – it has happened several times already.

I have discussed this issue in
more detail in a recent
blog post for The Conversation, but I will summarise the main points there
again. As regards deals between non-EU countries and the EU itself, the EU
Court of Justice has struck
down a Commission decision on the transfer of personal data to the USA,
because there was insufficient examination of the data protection standards
applied by US intelligence agencies as regards access to personal data on
social media. A replacement deal is planned, but will also be challenged
in court. A further case is pending, where the EU Court has been asked
to rule on the legality of the most recent EU/Canada treaty on the exchange
of passenger records data, to ascertain if it meets EU standards for data
protection.

If the UK left the EU, any UK/EU
agreement on the transfer of personal data would have to meet the same
requirements. Those requirements cannot simply be negotiated away, since they
stem from the EU Charter of Rights – part of the primary law of the EU. The
Charter can be amended, but to have legal effect the EU Treaties would also
have to be amended to refer to that revised text. It is hard to believe this could
happen at the behest of a country which has just left the EU.

Would UK legislation meet the
test of being sufficiently similar to EU standards? The Court of Justice has
been asked in the pending Davis
and Watson case whether the rules on police access to personal data
comply with the EU law that binds the UK as a Member State. Another Bill on
this issue is pending before the UK Parliament, and would likely become an Act
of Parliament before Brexit. Since many privacy campaigners are critical the
draft Bill, there would almost certainly be similar legal challenges to
transfers of personal data to and from the UK after Brexit, unless the UK
agrees to continue fully applying EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet summarising
the position of the two sides in the referendum campaign contains a number of relevant
claims from each side. For the Remain side, the pamphlet says that the EAW
‘allows us to deport criminals from the UK and catch those fleeing justice
across Europe’, and that EU membership helps to tackle ‘global threats like
terrorism’. For the Leave side, the pamphlet says that the EU ‘will continue to
control…vital security policies such as counter-terrorism’ and the EU Court
‘will keep taking powers over how our intelligence services fight terrorism’.

Are these claims valid? As for
the first Remain claim, as noted above the statistics show that the number of
persons extradited to and from the UK have indeed increased since the EAW has
been applied – although some
extradition would still take place even if the UK did not apply the EAW.

In light of the official UK
government information
referred to above, other operational cooperation via Europol and other forms of
EU police and criminal law cooperation presumably has some impact on combating threats
like terrorism and other serious crimes in practice. However, it is not
possible to estimate their impact compared to purely national actions and other
forms of international cooperation.

As for the arguments by the Leave
side, it is clear from the description of the laws which the UK applies that
the EU does not ‘control…vital security policies’. The functioning of the UK
law enforcement authorities is up to the UK, and there is no EU regulation of
intelligence agencies. EU law impacts only cross-border issues.

As we have seen, the only EU case
law to date impacting intelligence agencies concerns non-EU
intelligence agencies. The ruling restricts transfers of data gathered by
social networks to those non-EU countries in that context, unless those
countries apply EU data protection law. If the UK left the EU, it would therefore
be subject to the same restrictions on obtaining personal data in criminal
cases from the EU. Leaving the EU is therefore more likely to impedeUK intelligence agencies’
work, than it is to facilitate it.

Conclusion

The UK’s participation in EU
criminal and policing law has led to an increase in cooperation in areas such
as extradition and the exchange of police information. In these cases, there
are question marks about what would happen after Brexit – mainly political but
to some extent legal too. In the event of Brexit, there is a very high
likelihood that cooperation between the UK and the remaining EU would be
reduced (although not to zero). And in light of the UK’s opt-outs and the
limited effect of EU law on purely domestic matters, it cannot seriously be
argued that UK law enforcement and intelligence agencies are ‘controlled by’
the EU.

Is it true Professor that UK parliament first needs to repeal the 1972 European Communities Act before invoking Article 50?

And if this is indeed the case and parliament does repeal the Act before invoking Article 50, would a Surinder Singh route applications (EEA Family Permit) be systematically rejected by the Home Office?

I think there are decent arguments on both sides as to whether an Act of Parliament has to approve invoking Article 50. It wouldn't necessarily be a question of repealing the European Communities Act; it is possible that Parliament could pass an amendment to the Act that (for instance) gives the UK clear power to trigger Article 50. That same amendment might also provide for the repeal of the Act as of Brexit day - or the government might wait until a later date to propose that. To repeal the Act while still an EU Member State, if it took effect immediately, would be a breach of EU law, although the UK courts would still give effect to it.

Very helpful text. I am polish judge involving in criminal cooperation, especially on EAW field, so I am curies about the real result of Brexit between our countries. Indication on sufficient proof test also very interesting.